BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No. SH90146

	Plaintiff,			)

 		vs.			)  Citation No. C5271-059-90

OTKM CONSTRUCTION, INC.			)  

	Defendant			)  OPINION AND  ORDER



	This contested case under the Oregon Safe Employment Act came
on pursuant to Notice of Hearing in Portland, Oregon on December
3, 1990 before James P. Leahy, Referee. Thomas K. Elden
represented the attorney General's office on behalf of
plaintiff, Oregon Safety and Health Division (OSHA). OTKM
Construction, Inc., was represented by Donald C. McClain,
attorney at Law. Jim Terrell was the court recorder.



                           ISSUE



	Defendant was charged with one repeat violation of the Oregon
Occupational Safety and Health code. By a June 15, l990 letter
received by OSHA on June 18, 1990 William F. Koster, on behalf
of defendant, appealed the June l, 1990 citation.



                        FINDINGS OF FACT



	William F. Koster is a licensed Oregon civil engineer with some
40 years experience and was project manager of the construction
at 1375 N. W. 185th Avenue, Portland, Oregon. Gary Camfield was
the compliance officer who on May 9, 1990 observed a workman at
the construction site standing on a sawhorse more than ten feet
above a hard concrete surface (Exhibit 61).



	At the time of his observation, the compliance officer thought
that the workman could fall off the sawhorse from any of its
four sides.



	At the time of his observation, the compliance officer thought
that the horizontal 2 x 4 decking supports were 16 inches on
center. There are only 14l/2 inches between each beam for an
object to fall through.



	The compliance officer did not climb up to where the workman
was working when he made his inspection. The compliance officer
did not leave the ground floor and did not take measurements.



	The sawhorse in question was not unstable. TWO of its legs rest
on well-supported horizontal plywood panels and two of its legs
rest on a well-supported horizontal 2 x 4 plates. The workman
standing on the sawhorse, which is not a chargeable offense, was
not up in the open air as if he were climbing to the top of a
ladder. The workman in this case was surrounded by a web of
securely nailed rafters and stud walls on two sides at two
different heights.



	The web of securely nailed members, mostly 2 by 4's, would
prevent the workman from falling from three sides of the
sawhorse. The only opening he could fall through was toward the
concrete block wall (Exhibit 61). In order to fall more than ten
feet to the hard concrete surface below, his body would have had
to slip between the vertical stud wall, which is not as high as
his head when he is standing on the sawhorse. Then his body
would have to slip through the horizontal deck supporting 2 x
4's which are only 14l/2" between.



	The workman was not violating Standard OAR 437-3-040(1) because
although he was ten feet above a lower level, he was not working
on an unguarded surface.



                           OPINION



	The testimony of William F. Koster is believed and that an
ordinary attired workman would have to struggle to get between
the horizontal 2 x 4's. The testimony of William F. Koster was
to the effect that the construction plans called for a
horizontal 2 x 4 railing/blocking which would have protected
claimant from a fall inward, the only way it was proven and
conceded that he could have fallen. The plans (Exhibit 9) reveal
a continuous 2 x 4 rail for blocking. The undersigned is not
convinced that it was in place, however. The testimony is vague.
Testimony that it was not in place relies for corroboration on
photographs such as the bottom photograph on Exhibit 62. Had the
compliance officer ascended to the workplace, he might have
verified this railing, a permanent part of the structure, was
not yet installed, but he did not.



	In the undersigned's view this is a hyper-technical accusation.
There is no question that the compliance officer is under
obligation to issue the citation. It is the undersigned's
opinion that the compliance officer should be given discretion
to compare the likeliness of an accident here to the likeliness
of an accident when climbing up, down or off a diagonally placed
ladder against a building or a similar situation where fall
protection is not required.



	Had the workman fainted while standing on the sawhorse his body
would not have been rigid enough to slip through the vertical 2
x 4's and then also slip through the horizontal 2 x 4's, even if
the horizontal railing/blocking were not yet installed on the
vertical 2 x 4's. It is doubtful that the workman could have
held his body rigid enough to intentionally step off of the
sawhorse and fall through the two sets of 2 x 4l5



	There is no evidence that the sawhorse was not secure. There is
no evidence that it was likely to tip or tilt. The only evidence
is that if the claimant lost his balance somehow there was a low
probability that he would fall from one side only and a high
probability that if he did fall death would occur if he could
fall through the construction all the way to the ground floor.



                           CONCLUSIONS



	This hyper-technical situation is based in part on a
misconception of the compliance officer which may not have been
realized prior to hearing. Since it can't be settled it should
be dismissed.



                            ORDER



	The citation (C527105990) is dismissed with prejudice.



	NOTICE TO ALL PARTIES ANY PARTY TO THIS PROCEEDING WHO IS
DISSATISFIED WITH THIS ORDER MAY, NOT LATER 'THAN SIXTY (60)
DAYS AFTER THE MAILING DATE OF THIS ORDER, PETITION FOR JUDICIAL
REVIEW AS PROVIDED IN ORS 183.480.



	ENTERED at Portland, Oregon, on JAN 18 1991



				WORKERS' COMPENSATION BOARD

				By  JAMES P. LEAHY referee